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The Civil War Era

As a Crucible

for Nationalizing the Lower Federal Courts

KERMIT L. HALL

Assessing the impact of the Civil War on the

ideological and institutional underpinnings of nineteenth-century America presents a formidable historical challenge. As David Potter suggests, historians have often abused the concept of nationalism.1 Nevertheless, the unique state-centered federalism of nineteenth-century America, the heated sectional debate that preceded the war, and the emotional and physical trauma unleashed by the conflict make the broad question of the development of American nationalism worth exploring.

In its most common-sense meaning the process of nationalization implies the subordination or elimination of regional and local diversity in favor of a central or national authority. Although the new nation created in 1787 displayed the attributes of a consolidated state in the form of a national constitution and government, the national authority in Washington had to share power with local, regional, and sec

1975 by Kermit L. Hall

The author wishes to express his appreciation to Herman Belz, University of Maryland, for his helpful suggestions on an earlier version of this essay.

1 David M. Potter, "The Historian's Use of Nationalism and Vice Versa," American Historical Review 67 (1962): 924950. On the problems of nationalism and its development in nineteenth-century America, see Yehoshua Arieli, Individualism and Nationalism in American Ideology (Cambridge, Mass., 1964), esp. pp. 158-180, 308-315, 341-342; and Paul C. Nagel, This Sacred Trust: American Nationality, 1798-1898 (New York, 1971), esp. pp. 129-246.

tional interests. Certainly the federal judiciary system erected under the Constitution and defined in the Judiciary Act of 1789 embodied one of the obvious manifestations of balancing local and national interests. The three-tiered system of district, circuit, and supreme courts was subjected to a variety of local and regional pressures. These included the placement of district court boundaries within a single state, the recruitment of judges from within the state in which the court was held, the enactment of legislation requiring district and circuit courts to follow state rules of practice, the use of state facilities, the practice of requiring Supreme Court justices to serve on the circuit courts, and the recruitment of Supreme Court justices from sectional divisions that corresponded to the jurisdictional boundaries of the circuits.2 On the circuits the justices became "Republican schoolmasters" to the new nation, bringing the authority of federal government to the hustings while exposing the justices to peculiar circuit practices. Population and territorial expansion made circuit riding a time-consuming exercise

2 On the impact of local and regional interests on the federal courts, see Richard J. Richardson and Kenneth N. Vines, The Politics of Federal Courts (Boston, 1970), pp. 36-55; Herbert Jacob, "The Courts as Political Agencies- An Historical Analysis," in Studies in Judicial Politics, ed. Kenneth N. Vines and Herbert Jacob (New Orleans, 1962), pp. 9-50; and R. Kent Newmyer, "Justice Joseph Story on Circuit and a Neglected Phase of American Legal History," American Journal of Legal History 14 (1970): 112-135. On the early federal

forcing justices to neglect business in Washington. At the same time, lower court dockets, especially in commercial centers, burgeoned.3

Throughout the antebellum era nationalist spokesmen demanded a centralization of the organization and administration of the courts. Beginning with the short-lived Judiciary Act of 1801 and continuing to the eve of the Civil War, efforts to assert fuller national authority over the federal courts involved creation of an independently manned circuit court of appeals, providing the attorney general with supervisory powers over finances and personnel, and elimination of circuit riding. These efforts failed, in part, because a strong national court system threatened to upset the sectional balance of power. On the eve of the Civil War, administrative decentralization and individuality characterized the federal courts. For students of the Civil War era concerned with the problem of nationalization, the attempts of the Republican party to adjust federal judicial structure to deal with the imperatives of the war and Reconstruction and to relieve crowded dockets pose important questions. Were the 1860s characterized by a steady nationalization of the federal court system? Did the Republican Congress seek to elevate the federal courts courts, see Dwight F. Henderson, Courts For a New Nation (Washington, 1971), pp. 4-15; and Mary K. Tachau, "The Federal Courts in Kentucky, 1789-1816" (Ph.D. diss., Univ. of Kentucky, 1972), esp. pp. 14-38.

3 Ralph Lerner, "The Supreme Court as Republican Schoolmaster," in The Supreme Court Review, ed. Philip B. Kurland (Chicago, 1967), pp. 4-55. A precise estimate of the amount of business conducted in lower courts before the war must be impressionistic at best because the government did not maintain statistics. However, fragmentary data, collected at the behest of Congress and the secretary of the interior, suggests a steady increase, especially at major commercial centers such as Chicago and New York. See Senate Doc. 50, 25 Cong., 3 sess., ser. no. 339; Senate Doc. 183, 25 Cong., 3 sess., ser. no. 340; Senate Doc. 229, 25 Cong., 3 sess., ser. no. 340; and House Doc. 69, 35 Cong., 1 sess., ser. no. 955. For scattered returns during the 1850s, see Report of the Circuit Court Clerk of the Northern District of Illinois, Dec. 12, 1861, Source Chronological Files, Ill., 1850-62; Report of the Circuit Court Clerk of Maryland, Nov. 1861, Source Chronological Files, Md., 1854-63; Report of the Circuit Court Clerk of Missouri, Dec. 12, 1861, Source Chronological Files, Mo., 1854-64; and Report of the Circuit Court Clerk, Northern District of Ohio, Dec. 14, 1861, Source Chronological Files, Ohio, 1850-61; all in Records of the Department of Justice, Record Group 60, National Archives (hereafter cited as RG, NA). These data also suggest the justices were spending fewer and fewer days holding circuit court during the 1850s, leaving those responsibilities to district court judges.

4 Felix Frankfurter and James M. Landis, The Business of the Supreme Court: A Study in the Federal Judicial System

above the local and regional constituencies in which they had been traditionally embedded?

Until recently the answers to these questions constituted one of the few settled issues on the "dark and bloody ground" of Reconstruction historiography. The traditional and longaccepted interpretation ignored the lower federal courts, stressed the supposedly vindictive role that Congressional Republicans pursued during and after the Civil War in attempting to undermine the Supreme Court, and concluded that, on balance, the Republicans were hostile to judicial power. In this view, the judiciary laws of the 1860s were manifestoes designed to limit the high court with only minor implications for the remainder of the federal judiciary. A revisionist interpretation has set the historiographic pendulum swinging in an opposite direction, arguing that congressional Republicans sought to employ the judicial power "to further party aims, whether they were political or economic."6 Such actions, moreover, had broad implications for the entire judicial system. Pushing aside the view of Frankfurter and Landis that "the Civil War put out of men's minds such placid concerns as judicial organization," more recent scholarship argues that the Congress gave "nervous priority to judicial organization." To underscore this conclusion the revisionists correctly (New York, 1928), pp. 14-53; Kathryn Turner, "Federalist Policy and the Judiciary Act of 1801," William and Mary Quarterly 22 (1965): 9-32; Kermit L. Hall, "Federal Judicial Reform and Proslavery Constitutional Theory: A Retrospect on the Butler Bill," American Journal of Legal History 18 (1973): 166-184; Peter Graham Fish, The Politics of Federal Judicial Administration (Princeton, 1973), pp. 3-14.

5 William A. Dunning, Essays on the Civil War and Reconstruction and Related Topics (New York, 1898), pp. 121-122, 136-138; Dunning, Reconstruction: Political and Economic: 1865-1877 (New York, 1962), pp. 94, 256-258; Charles Warren, The Supreme Court in United States History, 3 vols. (Boston, 1922), pp. 1-219; James G. Randall and David Donald, The Civil War and Reconstruction (Boston, 1961), pp. 108-114, 646, 667-668; Alfred H. Kelly and W. A. Harbison, The American Constitution, 4th ed. (New York, 1970), pp. 480-486; Leonard P. Curry, Blueprint for Modern America (Nashville, 1968), pp. 207, 243; James G. Randall, Constitutional Problems Under Lincoln, rev. ed. (Urbana, 1951), p. 9; Frankfurter and Landis, Business of the Supreme Court, pp. 62-77.

6 Stanley I. Kutler, Judicial Power and Reconstruction Politics (Chicago, 1968), p. 159; H. M. Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (New York, 1973), pp. 224-242; William M. Wiecek, "The Reconstruction of Federal Judicial Power," American Journal of Legal History 13 (1969): 333-359. Charles Fairman, Reconstruction and Reunion, 1864-88: The Oliver Wendell Holmes Devise (New York, 1971), 6, pt. 1, notes the increase of judicial power but argues that there was fundamental animosity between Republicans and the Court.

demonstrate that Congress expanded the jurisdictional limits of the lower federal courts during the era to include "confiscation, emancipation, disloyalty, military governments, Reconstruction, and racial as well as a mix of nonmilitary matters." Indeed, far from being hostile toward the courts, congressional Republicans, in an “anti-institutional age," shunned new bureaucratic structures to deal with the impact of the war, adopting instead "judicial enforcement [as] traditional and inexpensive." Finally, they buttress their conclusions with the argument that major legislation involving the federal courts during the era "evoked almost no antijudiciary rhetoric."7

The revisionist interpretation is useful in underscoring Republican support for judicial power and the potential utility of the lower federal courts in serving Republican goals during the war and Reconstruction. The revisionists, however, while aware of organizational imperatives, treat the "nervous priorities of judicial organization" by citing jurisdictional changes that augmented especially the responsibilities of the lower federal courts. By stressing jurisdictional over organizational changes, the revisionists' view fails to emphasize sufficiently the local and regional pressures operating on a Republican party squeezed between a traditional commitment to the idea of judicial representation and the need for more and better administered courts. Republican Congressman William Lawrence of Ohio, in December 1867, argued that increased jurisdiction had to be complemented by a heightened judicial presence. Lawrence proposed doubling the number of district courts in Texas from two to four in order to promote the efficient discharge of new duties given them under "the Internal Revenue [Act], the Bureau of Freedmen and Refugees [Act], the general Bankruptcy Act, and 'an act to... facilitate the Restoration of government in the Rebel States.'" "All of which," Lawrence observed, had "greatly increased the powers and duties of the Judges and Officers of the District Courts of the United States." Thus, thorough enforcement required not only additional jurisdiction but a viable judicial organization and a sufficient federal court presence to treat with dispatch cases arising under the new jurisdiction.

'Hyman, A More Perfect Union, pp. 224, 227; Kutler, Judicial Power, p. 16.

* Preamble to H.R. 283, House Committee on the Judiciary,

During the 1860s the Republican Congress addressed the issue of federal judicial organization as it involved the Office of Attorney General, division of district courts, the Court of Claims, and the relationship of the Supreme Court to the circuit and district courts. The Office of Attorney General, despite the consolidating efforts of Caleb Cushing in the mid1850s, had slight direct control over the finances, personnel, and judicial business of the courts. Increases in district court litigation had traditionally been resolved by dividing states into more than one district, halving the dockets of overloaded courts. The Court of Claims, created in the mid-1850s, fulfilled only part of its original purpose of relieving Congress of the burden of dealing with claims against the federal government. With the Civil War, adjudication of private claims would increase. Finally, the Republican Congress confronted the necessity of rearranging the circuits to end the southern majority on the Supreme Court, to equalize population in the circuits, to extend the circuit court system to those states that had not been included since the Judiciary Act of 1837, and to reconsider the practicality of circuit riding in the face of the Court's inability to clear its dockets.

Under the leadership of Senator Lyman Trumbull and Representative James F. Wilson, chairmen of the judiciary committees of their respective houses, Republicans moved promptly to correct long-standing deficiencies in the federal court system. During the early days of 1861, Trumbull steered legislation through the Thirty-seventh Congress providing the attorney general with power to supervise lower court officers and finances.9 The legislation represented a modest first step toward fuller national control of the lower courts. But it was subsequently undermined by legislation offered at the behest of Secretary of the Treasury Salmon P. Chase, who resisted the diminution of the traditional role of the solicitor of the treasury in collecting the emoluments of court officers. 10 In 1862, after a prolonged intraparty struggle pitting moderates and conservatives against the more radical antijudiciary faction of the party led by John P. Hale of New

File 41A-F13.4, Records of the United States House of Representatives, RG 233, NA. See also Congressional Globe, 40 Cong., 2 sess., p. 162.

912 Statutes at Large 285; Congressional Globe, 37 Cong., 1 sess., pp. 62, 134-136, 365.

10 Salmon P. Chase to Lyman Trumbull, July 29, 1861;

Hampshire, Wilson obtained congressional approval of legislation strengthening the Court of Claims. Its most important provision divorced the court's decisionmaking process from Congress, making its judgments in cases of claims against the government reviewable by the Supreme Court but denying disgruntled suitors their previous right of appeal to Congress. 11 On the question of other reforms Republicans proved less willing to extend the federal judicial presence.

During the war increases in population and litigation prompted eight northern states to seek a division of their district courts. Under Trumbull's leadership the Senate Judiciary Committee proved especially reluctant to report favorably on such legislation. The Illinois senator counseled against the "unnecessary, inefficient, and expensive" division of district courts, reasoning that more courts brought forth more suitors, leading inevitably to an increase in litigation and even more appellate business before the Supreme Court. The rivalries that flared over such legislation indicate that Republican representatives approached the courts as vested local and regional institutions. In debating a division of Michigan, a measure which the Senate Judiciary Committee opposed but Congress adopted, William Pitt Fessenden wondered aloud why Michigan would seek an additional court when "one district court suffers in New York City?" Jacob Howard replied by reminding the Maine senator that Michigan was "larger than all the New England states put together." In considering legislation to provide an additional district court for New York, a measure passed by Congress with Trumbull's grudging support, western senators asserted that easterners were much more amenable to such legislation when it directly affected them.12 Regional and local imperatives also undermined the initial Republican effort to reform the circuit courts.

Demands for significant change in the circuit court system, through the elimination of circuit Edward Bates to Trumbull, July 31, 1861, Lyman Trumbull Papers, Library of Congress.

11 12 Statutes at Large 752; Congressional Globe, 37 Cong., 2 sess., pp. 422, 1672-1675; ibid., 3 sess., pp. 154, 246, 270, 303, 371, 393, 413, 480, 523, 625, 1322, 1326, 1341, 1435-1438, 1479, 1482, 1490, 1524, 1533. The Supreme Court overturned part of the legislation in Gordon v. United States, 2 Wallace 561 (1865), but approved subsequent legislation in United States v. Klein, 13 Wallace 128 (1872).

12 Congressional Globe, 37 Cong., 3 sess., pp. 1156, 1157; ibid., 38 Cong., 2 sess., p. 983. Eastern concerns for the

riding, the creation of an intermediate court of appeals, and a new division of labor in the district courts, came primarily from spokesmen outside Congress. Samuel Treat, judge of the Eastern District Court for Missouri, urged extension of the federal court system, providing for more district courts and a separate bench for circuit judges. 13 David Davis of Illinois also supported the creation of an independent circuit court judiciary, with a five-man Supreme Court in Washington relieved from circuit riding. 14 Lincoln in his inaugural address pressed for modifications in the federal courts but balked at offering more than general recommendations. 15 In 1861 the New York Tribune, after a healthy castigation of the southerndominated Supreme Court, concluded that Congress should undertake the "most urgent" task of a "thorough reorganization of the various Federal Courts." The New York paper noted that crowded dockets, poor administration, low salaries, and inadequate facilities militated against an efficient court system. 16 In a similar vein, Solomon Foot, president pro tempore of the Senate, linked the necessity of new judicial organization to the problems of the war and the prospects of Reconstruction, concluding that the Lincoln administration had an obligation to "provide judicial machinery" sufficient "to regenerate the present generation of southerners rapidly approaching barbarism."

// 17

In Congress conservative and moderate spokesmen concerned with local and regional requirements prevailed in the judiciary debates. Republicans from the trans-Mississippi region and the Far West sought inclusion in the circuit court system and new appointees on the Supreme Court to represent their regions. Excluded from the circuit court system since statehood, these regional interests were reluc

viability of the courts were expressed in New York Times, Feb. 27, Mar. 4, 1862, and J. S. T. Stanahan to Trumbull, Jan. 25, 1865, Trumbull Papers, LC.

13 Samuel Treat to David Davis, Nov. 21, 1862, Abraham Lincoln Papers, LC.

14 Davis to William Orme, May 17, 1861, Ward Lamon Papers, Huntington Library; William A. Bradley to Elihu B. Washburne, June 20, 1862, Washburne Papers, LC.

15 Senate Doc. 1, 37 Cong., 2 sess., ser. no. 1117, pp. 8-10. 16 New York Tribune, Dec. 12, 1861. See also Chicago Tribune, Mar. 4, 1861; N.Y. Tribune, Mar. 26, June 10, 1861, Dec. 3, 1862.

17 Solomon Foot to Preston King, June 7, 1861, Trumbull Papers, LC. See also Wait Talcott to Trumbull, May 9, 1862; Talcott to Trumbull, Jan. 11, 1863, ibid.

tant to forfeit their opportunity to gain a seat on the high court either by reducing the size of the Court or by ending the practice of appointing justices from the circuits.18 In addition, representatives from the Middle West, Ohio and Illinois in particular, clamored for representation on the high court and a proper alignment of circuits that would encompass states with mutual legal and business interests. These regional and state advocates of limited circuit court reform received administration support from Edward Bates, Lincoln's attorney general, who urged a realignment of the circuits but resisted broader change because of concern that more radical members of Congress might seize the opportunity to manacle the authority of the Supreme Court. 19 Further complicating circuit reorganization was pressure on the Lincoln administration to woo border state and southern Unionists by giving them an appointee on the high bench. Joseph Holt of Kentucky and James F. Petigru of South Carolina were considered.20 But, in the end, regional and local interests within the Republican party dictated the course of Lincoln's appointments as well as the organization of the courts.

In the regional tug-of-war that culminated in the Judiciary Act of 1862, Ohio governmental, business, and legal interests grasped the initiative, attempting to insure that court reform would furnish the state a Supreme Court justice and membership in a circuit with other states having similar economic and legal interests. Ohio Republicans accented "the intimacy of [Ohio] business intercourse between" Indiana and Michigan and conveyed their "anxiety" that Noah Haynes Swayne be appointed to replace the recently deceased John McLean.21 Fellow partisans quickly assailed

18 Senate Misc. Docs. No. 73, 37 Cong., 2 sess., ser. no. 1124. Petition to Senate, Senate Committee on the Judiciary, File 37A-E6, RG 46, NA.

19 Marvin R. Cain, Lincoln's Attorney General Edward Bates of Missouri (Columbia, Mo., 1965), pp. 182-189. More radical proposals designed to undermine the authority of the Court were made by John P. Hale and James Ashley. For Hale, see Congressional Globe, 37 Cong., 2 sess., pp. 8, 26-28; ibid., 38 Cong., 1 sess., p. 753. For Ashley, see ibid., 36 Cong., 1 sess., app., pp. 365-368.

20 Nashville Union and American, Mar. 10, 1861; Davis to Orme, Jan. 27, 1862, Henry Pratt Collection, Chicago Historical Society; petition of citizens of New York to Abraham Lincoln, Mar. 4, 1862, in Roy P. Basler, ed., The Collected Works of Abraham Lincoln (New Brunswick, 1953), vol. 8, p. 302.

21 William Dennison to Trumbull, Dec. 10, 1861; Samuel Galloway to Trumbull, Dec. 10, 1861; William Duncan to Trumbull, Dec. 11, 1861, Trumbull Papers, LC. Similar pleas

their Ohio colleagues. The Iowa delegation scrambled to gain an autonomous circuit for the trans-Mississippi states, and Illinois party members struggled to retain their traditional commercial and legal bond with the upper Midwest. Together they successfully thwarted the Ohio plan, charging that it was self-serving and failed to distribute equitably population among the circuits.

Operating under the rubric of population equality Congress finally settled, early in 1862, on a modified scheme proposed by Wilson of Iowa. The legislation placed Ohio and Indiana in one circuit, Michigan, Illinois, and Wisconsin in another, and created the transMississippi circuit sought by Iowa.22 Shortly thereafter, Lincoln appointed Samuel Miller of Iowa, David Davis of Illinois, and Noah Haynes Swayne of Ohio to the Supreme Court. All of this was accomplished by reducing the number of wholly southern circuits from five to three.23 Instead of subordinating regional diversity in the Judiciary Act of 1862, the Republicans succeeded in creating a northerndominated court system without effecting circuit riding or assisting in making the dockets of the Supreme Court and the lower courts more manageable.

The revisionist interpretation deems the Judiciary Act of 1862 the "first phase" of reconstruction in which "the Republicans had achieved their avowed purpose of equalizing the circuits." 24 Certainly, in bringing an end to the judicial embodiment of Calhoun's "concurrent majority," the act effected a step toward the assertion of northern interests. But if John Bingham could argue that the lack of population "reduced the number of circuits in the extreme south where they are not needed," Horace Maynard of Tennessee could only lament that his state's position in the geographically large, new, sixth circuit made federal judicial enforcement more difficult. The Tennessee

were forthcoming from Iowa, Indiana, and Illinois. See petitions of citizens of Iowa, Indiana, Illinois, Senate Committee on the Judiciary, File 37A-H8.2, RG 46, NA.

22 S-89, Senate Bill File 37A-B2, RG 46, NA; H-116, House Bill File 37A-B1, RG 233, NA; Congressional Globe, 37 Cong., 2 sess., pp. 33, 167-168, 173-175, 187-188, 288, 398, 469, 736, 879, 949, 2194, 2561-2563, 2666, 2675, 2914, 3089.

23 The Judiciary Act of 1866 subsequently reduced to one the number of circuits composed wholly of former slave states (14 Statutes at Large 209). In 1863 Congress finally brought California and Oregon into the system as a 10th circuit (12 Statutes at Large 194).

24 Kutler, Judicial Power, pp. 17-18.

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